Opinion
W.C. No. 4-198-955
October 10, 1995
ORDER OF REMAND
The claimant seeks review of a final order of Administrative Law Judge Wells (ALJ) which denied his claim for temporary total disability benefits. We set the order aside and remand for entry of a new order.
The ALJ's findings of fact may be summarized as follows. On December 6, 1993, the claimant sustained an injury in the scope of his employment as a painter. Although the claimant did not notify the employer in writing, the employer was aware of the claimant's back problems and placed him on light duty. The claimant continued to perform light duty through January 14, 1994.
On January 17, 1994, the claimant was experiencing so much discomfort that he sought medical treatment with the employer's designated medical provider. The claimant returned to work and submitted the medical bill to his supervisor, Mr. McCool. However, McCool advised the claimant that the medical bill was not "compensable" because the claimant had not reported the injury in writing within three days of its occurrence. The claimant then became angry with McCool and quit because he did not desire a "physical altercation with" McCool and because he desired to seek legal advice.
The ALJ found that the claimant was restricted from performing his regular employment from January 14, 1994 through June 19, 1994. However, the ALJ also concluded that the claimant "chose to terminate his employment" because of the employer's refusal to provide workers' compensation benefits, and this did not relieve the claimant "from the responsibility for his termination." The ALJ emphasized that it was the claimant's "decision to stop work," and therefore, the claimant was responsible for the loss of wages after January 14. In support of this result, the ALJ cited Monfort of Colorado v. Husson, 725 P.2d 67 (Colo.App. 1986).
On review, the claimant contends that the ALJ erred in determining that he was "at fault" for his separation from the employer, and therefore, denying the claim for subsequent temporary disability benefits. The claimant reasons that the cause of his separation from employment was McCool's false statement that the claimant was not entitled to workers' compensation benefits. The claimant asserts that, had McCool not provided this false information, he likely would have continued to work for the employer. For their part, the respondents argue that it is not material whether the claimant was "at fault" for the separation because the claimant's decision to leave work was purely "voluntary." We conclude that the ALJ's findings are insufficient to permit appellate review.
In PDM Molding Co., Inc. v. Standberg, 898 P.2d 542 (Colo. 1995), the court held that when a claimant is injured and "subsequently terminated from the employment during which the injury occurs, an initial determination must be made as to whether the termination was for fault." The court also held that if the claimant was at fault for the separation, the claimant may reestablish the right to temporary total disability benefits by proving that, to some degree, the injury contributed to the claimant's subsequent wage loss. In reaching this result, the court emphasized that temporary disability benefits are designed to compensate for actual loss of wages during the period the claimant is unable to work because of the injury.
The respondents' argument notwithstanding, we do not understand PDM Molding Co., Inc. as justifying a distinction between injured employees who lose post-injury employment due to their own "fault" and employees who "voluntarily" quit post-injury employment. In either case, the post-separation wage loss is, in the first instance, the result of the claimant's own conduct. Further, subsequent wage loss may or may not be related to restrictions caused by the industrial injury.
Having determined that there is no legal distinction between "fault" and "voluntarily quitting," we must determine whether the ALJ correctly applied the fault concept in holding that the claimant was responsible for his separation from employment. In Padilla v. Digital Equipment Corp., ___ P.2d ___ (Colo.App. No. 93CA1536, December 29, 1994), the Court of Appeals held that, "at a minimum, to be deemed at fault or responsible for his discharge, a claimant must have performed some volitional act or otherwise exercised a degree of control over the circumstances resulting in the termination." The court went on to state that determinations of fault turn "on the specific facts of any given separation from employment," and that the "concept of fault and its volitional nature in the unemployment insurance context is illustrative and instructive."
We recognize that, on September 25, 1995, our Supreme Court vacated the judgment of the Court of Appeals in Padilla v. Digital Equipment Corp., and remanded the case to the "Court of Appeals for reconsideration in light of PDM Molding Co., Inc. v. Standberg, 898 P.2d 542 (Colo. 1995)." In PDM Molding, the Supreme Court declined to address the definition of "fault" adopted by the Court of Appeals in Padilla. PDM Molding Co., Inc. v. Standberg, 898 P.2d at 547 n. 4. Consequently, we do not understand the Supreme Court as having disapproved the definition of fault adopted by the Court of Appeals in Padilla. Rather, the Supreme Court appears to have determined that, regardless of the issue of fault, the Court of Appeals must evaluate whether the claimant's wage loss, subsequent to his separation, was causally connected to the injury. Therefore, we consider Padilla to remain persuasive authority with respect to the definition of "fault."
In the context of unemployment insurance cases, the fact that a claimant intentionally "quits" employment does not necessarily render his unemployment "voluntary" under the "volitional conduct" standard. Rather, the claimant may "intentionally" quit employment, but not be "at fault" for the loss of work because the circumstances indicate that the quitting was not "volitional." See generally Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987) (determination of whether claimant is at fault for separation from employment depends on the totality of circumstances).
An example of intentional quitting which was not "volitional" is set forth in Centennial Drywall Co., Inc. v. Industrial Commission, 724 P.2d 685 (Colo.App. 1986). In Centennial Drywall, the claimants were members of a union. The collective bargaining agreement between the claimants' union and the employer expired, but the employer remained legally obligated to pay fringe benefits to the union trust fund. When the employer ceased making these payments, the claimants quit and sought unemployment insurance benefits. The court held that the claimants could not be considered to have "voluntarily left their employment," and were entitled to unemployment benefits.
Here, we are unable to ascertain whether the ALJ correctly applied the "volitional act" concept of fault. Specifically, we are unable to ascertain whether the ALJ considered whether the employer's actions in misinforming the claimant and refusing to pay the medical bill created circumstances under which the claimant's quitting could be deemed "non-volitional." In this regard, the mere fact that the claimant initiated the separation by "quitting" does not negate the underlying factual question as to whether the claimant's decision was "volitional" under all the circumstances.
On remand, the ALJ shall enter specific findings of fact resolving the question of "fault" in accordance with the legal standard set forth herein. Should the ALJ determine that the claimant was at fault for the separation, he shall determine whether the claimant's subsequent wage loss was compensable under the principles set forth in PDM Molding Co., Inc. v. Standberg, supra. IT IS THEREFORE ORDERED that the ALJ's order, dated November 9, 1994, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
Copies of this decision were mailed October 10, 1995 to the following parties:
Ron E. DeBias, 1321 Columbine Blvd., Colorado Springs, CO 80907-5702
McCool's Custom Painting, P.O. Box 9994, Colorado Springs, CO 80932
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq. (Interagency Mail)
Steven R. Waldmann, Esq., 303 S. Circle Dr., Ste. 202, Colorado Springs, CO 80910-3000
(For the Claimant)
By: ________________________